Siboli v People (SCZ 8 12 of 1994) [1994] ZMSC 157 (3 May 1994)

IM THE SUPREME COURT OF ZAMBIA Application No. SCZ/8/12/94 HOLDEN AT LUSAKA LEONARD SIBOLI Appellant V$ THE PEOPLE Respondent CORAM: Chaila, Chlrwa and Muzyamba Jd. S. ‘3rd May, 1994. For the Appellant : Mr. M, Mundla of Mundla & Co. For the Respondent : Mr. L. Muuka, Senior State Advocate " << - _ ’• V*. . . A—' y RULING ■' •' ■ ■ ■ ‘ ' • ■ Chaila, J. S. delivered the ruling of the court. • • ’ / ' * ■' ■ This is an appeal against the refusal of the learned trial Magistrate to grant the appellant ball pending trial. The appellant was facing charges under the provisions of Act No. 37 of 1993. He appeared before the suborinate court and a plea was taken. After the plea the applicant applied for ball on the ground that the Act under which he was charged had not come into force when he was detained. The learned trial magistrate heard the application and turned down the application and Refused bail. The appellant then appealed to the High Court. The High Court heard the appeal and dismissed the matter. The appellant now appeals to this court. ' ■ . ■ . . : At the beginning of the appeal, we inquired from Mr. Mundla whether or not this court had any jurisdiction to determine the matter since there is no appeal lying either against the decision of the learned trial magistrate or the full case to the High Court. We • referred the counsel to the provisions of section 32 (1) of the Criminal Procedure Code which prohibit appeals except in cases of conviction and sentences. The counsel conceded that there was no conviction and no sentence but he argued that judgment included any /2...order which — J2 * order which is made by the Subordinate Court and left the matter to our discretion. We have some difficulty in agreeing with Mr. Mundia’s interpretation. Section 32 (1) is very specific. It does not allow appeals in respect of any interlocutory matters. We are of the view that when the learned trial magistrate refused bail the right course for the appellant was to make an application to the High Court and not to appeal. The learned High Court Commissioner did not have the jurisdiction to determine the appeal and the proceedings in that court were null and void for lack of jurisdiction. Equally in this case there Is no appeal pending before the High Court and we cannot therefore entertain an appeal from the appellant. The^application Is therefore refused for lack of jurisdiction. We would, however, explain or make one point clear about the rights arising out of repealed laws. We are, from facts of this case, of the view that the rights accruing only relate to questions of sentences. There is nothing to stop the new provisions of the law to apply to a person who is alleged to have committed offences before the operation of the new law but prosecuted later. Procedurally he will have a right as to sentence ■ •• - ■ ■ M. S. Chaila SUPREME COURT JUDGE k O. K. Chlrwa SUPREME COURT JUDGE w. M, Muzyamba SUPREME COURT JUDGE (J 2-7/ IN THE SUPREME COURT OF ZAMBIA SGZ Judgment No, 14 of 199^ HOLDEN AT LUSAKA (Civil Jurisdiction) SCZ Appeal No. 74 of 1994 WILHELM ROMAN BUCHMAN Appellant and ATTORNEY-GENERAL Respondent CORAM: Chaila, Chirwa and Muzyamba JJ. S. 5th October, 1994 and 20th October, j994. For the Appellant : Mr. E. J, Shamwana SC * For the Respondent : Mr. A. G. Kinariwala, Principal State Advocate JUDGMENT Chaila, J. S. delivered the judgment of the Court.. This appeal arises out of the decision of the High Court refusing to extend the period of stay in Zambia. The appellant was deported some time back. He took out summons to challenge the deportation order. The High Court heard the case and dismissed the action. He applied for an extension of time in which to wind up his affairs. That was granted. When that period expired, he made an application to the High Court for further extension. It was heard by Cammissioner A. J. Nyangulu who extended the.peripd for further two months. When that period expired the appellant applied for another extension. The learned Commissioner turned dawn that application and the appellant has appealed against the refusal by Commissioner A. J, Nyanguiu, There were no heads of argument filed, but the appellant's counsel indicated that the issue was a simple one.' 'He argued that the learned Commissioner should have recused himself in the matter on the ground that his firm had represented one Catherine Mugala in a criminal matter. Mr. Shamwana pointed out that he had some difficulty in that he did not have a record to support what he was saying. He has not filed an affidavit because he did not deal with the matter in the lower court. He informed the court that the appeal was against Commissioner Nyangulu1s handling of the case. On an inquiry by the court Mr. Shamwana admitted that Commissioner Nyangulu had not been asked to recuse himself when the matter came before him for the second time. - J2 For the State Mr. Kinariwala submitted that there was no evidence that the learned Commissioner had heen requested to recuse himself. There was no objection raised and if it had been raised the learned Commissioner would have considered the matter and should have made a ruling. He submitted that it was late in the day for the appellant to come to the Supreme Court and raise the matter without any supporting evidence. We have noted that the matter involving the appellant came before the learned Commissioner twice. In the first instance the Commissioner extended the period and when that period expired the appellant went back to him. During that hearing the appellant never raised any objection to the learned Commissioner’s handling of the case. We have noted the objection raised by the learned Principal State Advocate. He has submitted that the appellant should go to the executive authorities for such extensions. The record shows of course that the appellant has stayed in Zambia for more than a year now and he has not according to him completed finalising his affairs. Section 24 of the Immigration and Deportation Act Chapter 122 of the Laws of Zambia provides:- (1) (2) Any person required by notice under section twenty-three to leave Zambia who on receipt of sych notice has lawfully remained in Zambia linger then seven days may, within forty­ eight hours of receiving such notice, deliver to any immigration officer, police officer or prison officer written representations to the Minister against such requirement and such representations shall be placed before the Minister without delay. If, after considering such representations, the Minister does not think fit to exercise his powers in relation to the issue of permits or the exemption of persons from the classes set out in the Second Schedule, the person who made such representations .shall be notified that his representations have been unsuccessful. It is in the light of this section that Mr. Kinariwala has complained that the courts are going too far in granting extensions. We fully agree with his sentiments. The people concerned should make representations to the executive authorities. As regards this matter, we note that the matter came before the High Court before Bweupe J., as he then was and granted three months to the appellant. - J5 - Later there was an extension made by the learned commissioner Nyangulu which culminated into an indefinite order when the appellant appealed to this court. Mr. Shamwana has raised before us some matter which was not raised before the Commissioner. Mr. Shamwana has not supported his complaint that the learned Commissioner should have recused himself. If he had done so in the lower court then the Commissioner would have made a ruling. This matter was not raised before the Commissioner, it cannot be raised in this court as ground of appeal before this court. The record, however, shows that the learned Commissioner was never biased in any way. In the first instance he granted an extension. Later he refused to extend the period but when the appellant appealed, he granted an indefinite stay in Zambia. The ground raised by the appellant in this court cannot succeed. The appeal is therefore dismissed with costs. M. S. Chaila SUPREME COURT JUDGE D. K. Ohirwa SUPREME COURT JUDGE OU000A00OO0OOQ00OOO00OOOO00 W. M. Muzyamba SUPREME COURT JUDGE